Howland v Ellis

Case [2001] NSWCA 456
CITATION: Howland v Ellis [2001] NSWCA 456
FILE NUMBER(S): CA 40103/00
HEARING DATE(S): 5 July 2001
JUDGMENT DATE:
10 December 2001

PARTIES :
John Robert Holland - Appellant
Lalla Carmella Ellis - Respondent
JUDGMENT OF: Meagher JA at 1; Stein JA at 2; Ipp AJA at 50
LOWER COURT JURISDICTION : Supreme Court - Equity Division
LOWER COURT
FILE NUMBER(S) : 		EQ 2621/97
LOWER COURT
JUDICIAL OFFICER :		 Master McLaughlin
COUNSEL: In Person - Appellant
G Walsh (Solicitor) - Respondent
SOLICITORS: In Person - Appellant
Glenn K Walsh, Sydney - Respondent
CATCHWORDS: FAMILY LAW - de facto relationships - distribution of property - financial contribution - non-financial contribution - FAMILY LAW - procedure - limitation period - when de facto relationship ended - whether imprisonment of a party for substantial period of time ended relationship - nature of separation - whether parties intended to end relationship - EVIDENCE - credibility - whether Master misused advantage - ND
LEGISLATION CITED: De Facto Relationships Act 1984
Property (Relationships) Act 1984
Felons (Civil Proceedings) Act 1981
Matrimonial Causes Act 1959
CASES CITED:
 George v Hibberson (1987) DFC 95-054
Hibberson v George (1989) 12 Fam LR 725
Jenkin v Ellis (1990) DFC 95-086
McLaughlin v Saillard & Ors (1990) DFC 95-082
McRae v McRae (1967) 68 SR (NSW) 36
Pavey v Pavey (1976) FLC 90-051
DECISION: See paragraph 48 for orders




                          CA 40103/00
                          EQ 2621/97
                          MEAGHER JA
                          STEIN JA
                          IPP AJA

                          Monday, 10 December 2001
John Robert HOWLAND v Lalla Carmella ELLIS

      The appellant, who is a litigant in person and at the time of hearing was a prisoner in custody, appeals the decision of Master McLaughlin dismissing his claim under the De Facto Relationships Act 1984. The Master ruled that the appellant’s claim was filed approximately 2 years out of time, as he based the date of the end of the de facto relationship on the time at which the appellant was sentenced to a lengthy period of imprisonment. The appellant argued that the relationship had not in fact ended at this time and that his claim was only a few months out of time, a delay that was explicable. The appellant also sought to challenge a number of adverse credit findings, as well as the Master’s finding that he was not entitled to any interest in the property of the relationship.

      Held: Per Stein JA ( Meagher JA and Ipp AJA agreeing)

      1. More than mere physical separation is required for a de facto relationship to come to an end. Physical separation of the parties must be accompanied by an intention on the part of either partner to permanently end the relationship.

    - George v Hibberson (1987) DFC 95-054 applied
    - McRae v McRae (1967) 68 SR (NSW) 361 considered
    - Pavey v Pavey (1976) FLC 90-051 considered
    - Hibberson v George (1989) 12 Fam L R 725 considered

      2. The determination of whether on separation the requisite intention to end the relationship existed is a question of fact.

3. Where the…

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AGLC
Howland v Ellis [2001] NSWCA 456
Case
[2001] NSWCA 456
Decision Date

CaseChat Overview and Summary

The appeal concerned the distribution of property following the breakdown of a de facto relationship between the parties, Mr. Howland and Ms. Ellis. The primary dispute revolved around whether the de facto relationship had ended at a point in time that would render Ms. Ellis's application for property adjustment out of time, given her imprisonment for a substantial period. The matter came before the Court of Appeal of New South Wales.

The central legal issues before the Court were: (1) when the de facto relationship between the parties ended, particularly in light of Mr. Howland's lengthy imprisonment; (2) whether the imprisonment constituted a separation with the intention of ending the relationship; and (3) whether the Master, in assessing the evidence, had misused any advantage gained from observing the witnesses.

The Court considered the nature of separation in the context of a de facto relationship, noting that it requires more than just physical separation; there must be an intention by one or both parties to end the relationship. The Court found that Mr. Howland's imprisonment, while a significant event, did not automatically signify the end of the de facto relationship. The evidence did not demonstrate that either party had formed the intention to permanently separate during the period of imprisonment. The Court also addressed the Master's assessment of credibility, finding no error in the Master's use of any advantage gained from observing the witnesses.

The Court of Appeal dismissed the appeal, upholding the Master's decision regarding the date of separation and the subsequent property adjustment orders.

Orders

Orders of the court

See paragraph 48 for orders

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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